Forum Center: No payday for the Paycheck Fairness Act

By Alex Culpepper

Illustration: Joe Heller

The Paycheck Fairness Act failed to make its way through the U.S. Senate, falling short of the 60 votes needed for debate. The bill sought to close the wage gap between men and women and make what people earn more transparent when they feel they are facing gender-based wage discrimination. The act also would have legally required businesses to open the pay records when asked to prove pay discrepancies are not gender-based, and they would have faced legal problems had they attempted actions against employees raising concerns over gender and pay. The move to get this bill passed was not a new proposal; it was just another in a line of similar legislation that had also fallen short.

In 1945, the Women’s Equal Pay Act found an audience in Congress, but differences over the language and what “comparable work” meant led to its legislative death. By 1960, more women had entered the job force, and more equal pay bills had found their way to Congress. All of those failed to pass, too. Then in 1961, John Kennedy took office as president, and bustle for an equal pay bill started again. Things were different this time because Kennedy had Esther Peterson working for him in the Department of Labor, and she led a commission to gather data, build coalitions and gather support where support had not been in the past. In 1963, Peterson completed an equal pay bill and sent it to Congress. The key to her bill was she scratched the term “comparable work” and instead used terms like “equal work.” Then, to ease opponents, Congress made Peterson’s bill part of the Fair Labor Standards Act, and the Equal Pay Act became law later that year. The Civil Rights Act followed in 1964, which, in part, made it illegal to discriminate on the basis of gender.

Those legislative milestones did lead to progress, but the Senate push for another bill shows the debate is still brewing. Advocates for equal pay for equal work have been for years noting disparities in pay and calling for changes. Their opponents are sympathetic to some extent but believe the current legislation is not the answer.

Supporters of the Paycheck Fairness Act say this legislation was an essential fairness and economic issue. They say women are making 77 cents to a man’s dollar, and even when statistical models adjust for men’s typical positions in higher paying jobs, women still earn less. They say that’s because women in nearly all the same top jobs men hold take home less money. Supporters don’t like the economics either because they say many women are heads of households, and in those situations, they are not the only ones who are affected by lower pay.

Opponents of the bill claim the statistics are questionable and have been measured under the influence of advocacy. One reason they offer for disparity is the choices men and women make when it comes to occupations: men usually seek higher paying jobs. Another major reason for the opposition is they saw a terrible road ahead of civil lawsuits, out-of-control punitive damages, economic problems, bad blood and trial lawyers being the only ones who would have really benefited.

These are only a few reasons why each side has issues. In reality, the arguments for each side are many and long. Some reports even claim the divide is not so great, and the show is just another Capitol Hill tangle with each side exposing the other’s political mischief. Even so, the bill’s supporters see defeat for fairness and equality, while their opponents see dubious legislation offering more harm than good.

Debate forum question of the week:

Are the provisions of the Paycheck Fairness Act necessary? Or does the illegality of wage discrimination as provided by the Civil Rights Act of 1964 and the Equal Pay Act of 1963 render this bill unnecessary?

Debate Left: C+ quality in the workplace

By Ben Tomkins

The Paycheck Fairness Act (PFA) could be easily dismissed as useless and redundant because it appears the Equal Pay Act (EPA) of 1963 does the same thing. Under the EPA, an employer is only allowed to pay a person a different amount than someone else for the same work if wages are based on seniority, a merit, quality of quantity of production or “any other factor other than sex.”

The EPA did a magnificent job of raising the average woman’s salary compared to a man from 62 percent in the late ’70s to about 80 percent by 2004, and one would think progress of that kind would be enough to convert women’s ceaseless nagging and passive-aggressive withholding of sex over the issue into clean sinks and silence. However, if you are one of those people who persists with the argument being able to sign your name with urine isn’t qualification enough for an extra 20 cents on the dollar, then the PFA might be for you.

Yes, in spirit, the EPA makes it illegal to pay someone a different wage based solely on gender. Unfortunately, we don’t live in a theoretical world, and this is precisely what the PFA is designed to address. Ambiguity is the bedfellow of injustice, and if it hadn’t already occurred to you, the condition “any other factor other than sex” is about as broad as Sophia Veraga’s cleavage.

Government: Hey Ben, you wouldn’t by any chance be paying Sophia 20 percent less than everyone else because she’s a woman, would you?

Me: Of course not. I pay her 20 percent less because of the wear-and-tear her enormous breasts put on our break room table every time she plops down for a snack.

Even though verbose laws are a pet peeve of the American public these days, like it or not, words do matter. The PFA tidies up a gaping loophole by stipulating the “factor other than sex” must be based on a legitimate reason that is not somehow derived from sex, related to the actual position in question, and must be demonstrably necessary as a business practice. That’s a good clarification that clads a legal spirit with flesh and bones for the real world. It’s the difference between ideology and policy.

Don’t get me wrong, I’m not implying board rooms across the country are packed with good old boys or women-need-to-stick-together cliques – yes ladies, you freaking do it, too, and I’ve been on the receiving end of it. I get that in a male-dominated workforce women would do well to stick together, but in the words of James Thurber, “You might as well fall flat on your face as lean over too far backward.” The clarification is in all likelihood a protection against bullshit defenses erected to avoid dealing with an employee who points out gender bias. Without the clarifications of the PFA, an employee who speaks up would be subject to a whole host of flimsy constructs limited only by management’s imagination. Worse than that, by speaking up, that employee not only risks walking away empty handed, but also out of the good graces of their boss. Hence, the PFA’s provision a company can’t punish an employee for making a claim.

That being said, returning to the point about overly-verbose laws, all of this becomes moot if the EPA has, in fact, functionally remedied the problem of wage inequality by itself. Currently, the biggest argument against the PFA is taken directly from the report of the company hired by the government to assess the issue. The conclusion drawn by the 2007 CONSAD Research Corporation was:

“This study leads to the unambiguous conclusion that the differences in the compensation of men and women are the result of a multitude of factors and that the raw wage gap should not be used as the basis to justify corrective action. Indeed, there may be nothing to correct. The differences in raw wages may be almost entirely the result of the individual choices being made by both male and female workers.”

That summary reflects the fact that men and women have many, many reasons for making job compensation choices that reflect differing personal interests. One of the dozens of examples is health care. A woman may prioritize health benefits over maximum take-home pay, simply because of pregnancy and long-term birth control concerns.

Indeed, a 2009 CONSAD study concluded it would “never be possible” to clarify the issue, and based itself largely on work by Eric Solberg and Teresa Laughlin in 1995 finding when these fringe benefits are taken into account, women are making about 96.4 percent of their male equivalents.

Well, maybe it’s just me, but “it’s close enough so quit whining” isn’t really an argument that justifies discrimination. That’s like saying, “So what? Most black people aren’t slaves.” It’s not just unjust, it’s incredibly callous. Even at a conveniently rounded 97 percent, for a $50,000 salary, your vagina still costs you $1,500. That costs your husband, like, 50 cases of PBR and 20 mid-range lap dances every year. It’s ridiculous.

At the end of the day, the PFA is a few more words of law, but those few words could have a significant impact on women in the workplace and make an important statement about our dedication to social equality.

Ben Tomkins is a violinist, teacher, journalist, and critically acclaimed composer currently living in Denver, Colo. He hates stupidity, and generally believes that the volume of one’s voice is inversely proportional to one’s knowledge of the issue. Reach Ben Tomkins at BenTomkins@DaytonCityPaper.com.

There have been numerous strides over the past 50 years in fair wage laws, anti-discrimination law, occupational safety laws and much more. Today, women with the father of the child can receive maternity leave under the Family Medical Leave Act (FMLA) or an employee can take time off for an ailing parent or spouse. These laws were unheard of at the beginning of the 20th century that are commonplace now.

The proposed bill, sponsored by Sen. Barbara Mikulski (D-Md.), had 52 co-sponsors, but Democrats were unable to persuade any Republicans to vote in favor of the legislation. Sixty votes were needed to proceed on the bill, which Senate Democrats vowed they would reintroduce if it failed during last week’s vote.

Had it passed, the bill would have made it illegal for employers to retaliate against a worker who inquires about or discloses his or her wages or the wages of another employee in a complaint or investigation. It also would make employers liable to civil actions. And as part of this bill, the Equal Employment Opportunity Commission would be required to collect pay information from employers.

The Paycheck Fairness Act claims to seek equality of wages between the sexes. Under the proposed law, employers would be required to prove any wage differential results from a “business necessity” which cannot be remedied through any other means. Under the law and subsequent regulations from the labor department, this would make it very difficult for employers to pay workers according to their merit and production.

Most support equal pay for equal work, but often things are not as simple as they seem. Shouldn’t a worker who puts in extra hours on a major project be allowed to receive a bonus for extra effort? Without such merit-based pay, both women and men who deserve higher compensation will be less apt to receive it – resulting in decreased worker production.

The Paycheck Fairness Act would also send trial lawyers into overdrive by automatically including women in class action lawsuits and allowing them to sue for unlimited damages. The act would allow for punitive damages, which likely would cause thousands of companies to go into bankruptcy or out of business due to large judgments.

The act would effectively allow lawyers to second-guess employers’ business calculations about the value of a worker. The prospects of facing frivolous class action suits would discourage business owners from selecting female job applicants, causing a reduction of women’s opportunities and choices in the workplace.

“Paycheck Fairness” is an appealing political phrase, but the reality is there is no need for further legislation to ensure equal pay for equal work. Both the Equal Pay Act of 1963 and the Civil Rights Act of 1964 protect workers against a multitude of workplace discriminations. Notwithstanding these protections, economic reality creates natural market penalties for employers who discriminate and do not provide equal pay.

Ultimately, in today’s highly competitive global economy, companies that practice pay-based discrimination will be at a competitive disadvantage compared to those who do not. Underpaid women can and will find new jobs that will pay them according to their worth. Companies that overpay men will be undercut by those that pay their workers efficiently, according to the value they produce.

So, specifically, why do women earn only 77 cents for every dollar earned by men? That statistic is cited by proponents of the Paycheck Fairness Act. The easy answer is the 77-cent number is totally bogus and has begun to be called into question by several independent sources. The rate doesn’t take into account any differences in the jobs men and women choose, the employee’s years in the workforce and continuous service or any special skills the employee may have developed. Factor in those real world considerations and most of the “gender pay gap” disappears.

A 2009 study by the Department of Labor found all but five to seven cents of the pay gap between men and women could be explained by such differences as occupation, education, experience and part-time versus full-time work. Part of the remaining gap is the result of individual choices made by men and women.

The Paycheck Fairness Act would place individual choices at risk. By increasing the risk of lawsuits, it will encourage business owners to limit flexible work options that tend to benefit women more than men. Most businesses that are growing are small businesses in the United States, and taking individual choice away from small business ultimately will create a cookie-cutter type employee and employment. This would hurt business.

For any employee, including working mothers, flexibility with work is a crucial component. Most businesses offer their employees sick days, the ability to attend doctor appointments and to stay home for snow days when schools and daycares are closed.

The Paycheck Fairness Act would restrict the availability of such personalized, flexible work arrangements for women and men alike. It would impede the freedom and personal choices of both sexes and put a huge restriction on business in the United States.

Rob Scott is a general practice attorney at Oldham & Deitering, LLC. Scott is a Kettering City Councilman and founder of the Dayton Tea Party. He can be contacted at rob@oldhamdeitering.com or gemcitylaw.com.